M/s. DSR Steel (P)
Ltd. Vs. State of Rajasthan & Ors.
[Civil Appeal No.
3814 of 2007]
[With Civil Appeal
No.4393/2007 and No.4396/2007]
O R D E R
T.S. THAKUR, J.
1.
These
appeals under Section 125 of the Electricity Act, 2003 call in question the correctness
of an order dated 23rd November, 2006, passed by the Appellate Tribunal for
Electricity whereby a batch of appeals including those filed by the appellants
against an order dated 8th June, 2006 passed by the Rajasthan Electricity
Regulatory Commission, have been dismissed.
2.
Jaipur
Vidyut Vitran Nigam Limited (‘JVVNL’ for short), Jodhpur Vidyut Vitran Nigam
Limited (‘JDVVNL’ for short) and Ajmer Vidyut Vitran Nigam Limited (‘AVVNL’ for
short), submitted separate applications before the Rajasthan Electricity
Regulatory Commission (for short ‘Commission’) at Jaipur in terms of Sections
62 and 64 of the Electricity Act, 2003 for revision of tariff to be effective
from December 1, 2004.
Each one of these distribution
companies (‘Discoms’ for short) had an existing tariff but in their respective
applications they sought an identical tariff revision which requests were taken
up by the Commission for consideration together and disposed of in terms of a common
order dated 17th December, 2004, passed after notices regarding filing of the said
applications were published in different newspapers having circulation in the State
of Rajasthan. Several objections were filed and suggestions made by nearly 100 individuals
and organisations in the course of the proceedings before the Commission. All
these objections were then considered by the Commission no matter only 38 of
those who had filed the same had complied with the requirement laid down by the
former.
A large number of people
and organisations even applied for personal hearing and were heard on different
dates at different venues fixed for the purpose. Some of these objections also
related to individual problems of the consumers or disputes relating to bills
and other matters which were directed to be considered by the Discoms and
decision taken on the same under intimation to the persons concerned. Other
issues including those questioning the maintainability of the petitions and alleging
non-compliance with the regulations and directions of the Commission were also
raised. Issues touching reforms in power sector, non-determination of the Rajasthan
Vidyut Utpadan Nigam’ stariff from whom the Discoms purchase electricity, poor performance
of Vidyut Vitran Nigams were also agitated.
Similarly objections to
the proposed increase in tariff, interest charges, depreciation etc. too were raised
and examined by the Commission. Suggestions regarding improvement, objections
relating to high T&D losses, inadequacy of staff, continuation of
un-metered supply, issue of deemed licensee and tariff for deemed licensee were
also examined.
Questions relating to
high voltage supply, segregation of mixed load, billing demand, demand based tariff
for MIP consumers, power factor and shunt capacitor surcharge, vigilance checking
of consumers, minimum billing, agriculture, domestic and industrial tariff too
were examined by the Commission apart from several other issues that were
placed before the Commission to which the Commission has made a reference in
its order dated 8th June, 2006. The Commission eventually directed that the
revised tariff determined by it will become effective from 1st January, 2005
and remain in force till the same is amended by the Commission by a separate
order passed by it.
3.
Aggrieved
by the order passed by the Commission, the appellants and a large number of
other consumers in that category filed review petitions under Section 94 (1)(f)
of the Electricity Act, 2003 seeking review and continuation of the incentive
scheme. These review petitions were dismissed by the Commission in terms of its
order dated 8th June, 2006. The Commission noted the contention urged on behalf
of the petitioners that they were affected by the withdrawal of the incentive
scheme. It was also urged that these consumers had made investments on the basis
of the incentive scheme bona fide believing that the same would continue for at
least three years. The review petitioners, therefore, sought continuation of
the said scheme by suitable review of the Commission’s order dated 17thDecember,
2004. The Commission also noted the opposition of the Discoms to the said
prayer and the contention that the incentive scheme was to be effective upto
31st March, 2003 or till the Commission issued a tariff order whichever was earlier.
4.
The
Commission noted the submissions made on behalf of the Discoms that the tariff
petitions had been filed in August 2004 and the details of the scheme had been
published in newspapers including the incentive scheme which was deliberated in
the course of the public hearing and dealt with in the Commission’s tariff
order dated 17th December, 2004. It was also argued on behalf of the Discoms
that the modified incentive scheme was free from any legal flaw.
5.
Consideration
of the rival submissions led the Commission to the conclusion that its order dated
17th December, 2004 had examined the question raised by the petitioners regarding
the continuation of the incentive scheme and found that the scheme had a
limited validity and its withdrawal did not offend the principles of promissory
estoppel.
It also held that the
modification of the scheme was not without public notice and the discontinuance
of the old incentive scheme had been given wide publicity pursuant to which large
industries and associations had been heard on the question of introduction of a
new scheme in place of the old. The Commission also held that the question of applicability
of Promissory Estoppel had been raised before the Commission at the hearing of
the tariff petitions and that the material sought to be introduced in support of
the said plea at the stage of review could not be taken into consideration.
The Commission,
accordingly, concluded that there was no mistake or error apparent on the face
of the record in the order passed by it to call for a review of the same. In
support the Commission noted several decisions of this Court on the question of
Promissory Estoppel including those delivered in M/s Motilal Padampat Sugar
Mills Co. Ltd. v. State of Uttar Pradesh and Ors. (1979) 2 SCC 409, Kasinka
Trading and Anr. v. Union of India an Anr.(1995) 1 SCC 274, Shrijee Sales
Corporation and Anr. v. Union of India(1997) 3 SCC 398, Union of India & Ors.
v. Godfrey Philips India Ltd.(1985) 4 SCC 369.
6.
Aggrieved
by the orders dated 17th December, 2004 and 8th June, 2006passed by the Commission,
the appellants and few others filed AppealNos.180-197 of 2006 and Appeal No.226
of 2006 before the Appellate Tribunal for Electricity, at New Delhi which were
as noticed above dismissed by the Tribunal by the order impugned in these
appeals. The Tribunal noted that there was no challenge before it as to the revision
of the tariff order issued by the Commission. It also found that the Regulatory
Commission could exercise its power of review in terms of Section 94(1)(f) of the
Electricity Act, 2003 read with Order XLVII of the Civil Procedure Code and that
it could review an order, provided a case for any such review was made out.
The Tribunal rejected
the contention urged on behalf of the appellants that the doctrine of
Promissory Estoppel was attracted in the facts of the case. It concurred with the
view taken by the Commission that the incentive scheme was applicable only upto
31st March, 2007 or till the Commission issued a tariff order whichever was earlier.
The Tribunal observed:
“As has been held in Pawan Alloys & Casting Pvt. Ltd., Meerut v. U.P. State
Electricity Board And Others, (1997) 7 Supreme Court Cases 251, in this case, no
promise was held out to any new industries nor there was an invitation for investments
of large scale fund but it only imposed a condition that existing industries could
avail of the incentive subject to the stipulations in the scheme and nothing more.
The tariff fixation is
a statutory function in terms of The Electricity Act 2003 and tariff is to be fixed
in the larger interest of consumer public at large. That being the position and
when in the very tariff scheme, it has been specifically provided that the scheme
will come to an end on 31.03.2007 or when the Regulatory Commission determines distribution
tariff which ever is earlier. This is only meaning it is not known as to how the
appellants could advance the said contention that the scheme is to be given any
other meaning is impermissible.
This sentence which
is incorporated in the scheme is fatal to the claim of the appellants and none
of the precedents pressed into service by the appellants will come to their rescue.
It will be sufficient to answer this point, however, as the appellants on all
the contentions pressed for a decision.
7.
”
We have heard learned counsel for the parties at considerable length. An appeal
under Section 125 of the Electricity Act, 2003 is maintainable before this
Court only on the grounds specified in Section 100 of the Code of Civil Procedure.
Section 100 of the C.P.C. in turn permits filing of an appeal only if the case
involves a substantial question of law. Findings of fact recorded by the Courts
below, which would in the present case, imply the Regulatory Commission as the
Court of first instance and the Appellate Tribunal as the Court hearing the
first appeal, cannot be re-opened before this Court in an appeal under Section
125 of the Electricity Act, 2003.
Just as the High
Court cannot interfere with the concurrent findings of fact recorded by the
Courts below in a second appeal under Section 100 of the Code of Civil Procedure,
so also this Court would be loathed to entertain any challenge to the
concurrent findings of fact recorded by the Regulatory Commission and the
Appellate Tribunal. The decisions of this Court on the point are a legion.
Reference to Govindaraju v. Mariamman (AIR2005 SC 1008), Hari Singh v. Kanhaiya
Lal (AIR 1999 SC 3325), Ramaswamy Kalingaryar v. Mathayan Padayachi (AIR 1992
SC 115), Kehar Singh v. YashPal and Ors. (AIR 1990 SC 2212), Bismillah Begum
(Smt.) (Dead) by LRs. v. Rahmatullah Khan (Dead) by LRs. (AIR 1998 SC 970)
should, however, suffice.
8.
The
Regulatory Commission has, in the case at hand recorded a clear finding of fact
that the old incentive scheme was limited only upto 31st March, 2007
or till the Commission issued a tariff order whichever was earlier. It has also
recorded a finding that while considering revision of tariff it had gone into the
proposals regarding introduction of a new incentive scheme and approved the
same, effectively bringing to an end the existing scheme and introducing a new
scheme in its place. The Commission had declined to accept the contention that the
appellant companies had altered their position to their detriment by making additional
investments or that there was any specific representation or promise made to them
that the old scheme would inevitably continue till 31st March, 2007.
The additional
material which the appellants had sought to introduce belatedly at the review
stage had also been declined by the Commission. In its order dated 17th
December, 2004 revising tariff the Commission had dealt with the question
relating to the incentive scheme in the following words: “70. The incentive
scheme was proposed by the Nigams as a stopgap arrangement to arrest the decline
in industrial consumption. The Commission while conveying its approval to extension
of the incentive scheme clearly stipulated that it shall be valid till 31.3.07
or revision of tariff whichever was earlier.
The scheme itself had
a limited validity and therefore, did not attract the principle of promissory
estoppel. The Commission had envisaged review of incentive scheme at the time of
tariff revision, as the proceeding would have provided opportunity to public to
express their views to enable appropriate changes in incentive scheme or
tariff. 71. After considering the petitioners’ proposal and the views expressed
before us, the Commission is of the view that no separate scheme is called for
at this stage. The need to provide incentive to promote consumption of
electricity by large industrial power (LIP) consumers should be taken care of
by the tariff itself.
An incentive which encourages
better load factor will serve the purpose. Consequently, an incentive scheme
linked to consumption per KVA of contract demand is proposed. Accordingly we
direct that the incentive shall be available to all LIP consumers including railways
and public water works, and eligibility for incentive shall be as follows:
(i) The annual consumption
of the consumer for the current financial year shall not be less than his annual
consumption of the previous financial year.
(ii) In respect of
new LIP consumers and existing LIP consumers who reduce their contract demand,
incentive shall be admissible from the quarter following six months from the date
of new connection or reduction of contract demand, as the case may be.
(iii) Consumer should
have no arrear outstanding against him. 72. Incentive shall be allowed to eligible
consumers provisionally on quarterly basis provided that consumption during the
quarter is not less than his consumption during the corresponding quarter during
the previous year. Incentive so allowed shall be subject to final assessment at
the end of the year, on year-to-year basis.
If consumption of a
consumer in any quarter is less than that of the corresponding quarter of the previous
year but the annual consumption is more than that of the previous year, he shall
be eligible for the incentive for the year as a whole. Incentive shall be as
under on energy charges:-
|
1
|
Energy
consumption of 250 KWh per month per kVA of contract demand and upto 400 KWh
per month per kVA of contract demand.
|
1.0%
|
|
2
|
Energy
consumption exceeding 400 KWh per month per kVA of contract demand and upto
550 KWh per month per kVA of contract demand.
|
4.0%
|
|
3
|
Energy
consumption in excess of 550 KWh per Month per kVA of contract demand.”
|
7.0%
|
9.
The
Tribunal concurred with the above view taken by the Commission and repelled the
contention based on the principle of promissory estoppels not only on the
ground that there had been no unequivocal representation regarding continuation
of the scheme till 31st March, 2007 but also on the ground that there was no material
to support the contention that the appellants had indeed made any investment or
changed their position to their detriment so as to attract the doctrine of promissory
estoppel. Incoming to that conclusion the Commission has also relied upon several
decisions of this Court to which we have made a mention above.
We do not see any
perversity in any one of those findings nor do we see any substantial question
of law arising in the fact situation of these appeals. We have, therefore, no
hesitation in dismissing these appeals on merits although the same have been
filed beyond the period stipulated for the purpose under Section 125 of the
Electricity Act, 2003.
10.
We
may before parting mention that in Civil Appeal No.3814 of 2007filed by DSR
Steel (P) Ltd., one of the questions that was urged before us was whether the
period of limitation would start running from the date of pronouncement of the
order or the date of communication thereof. Relying upon the decision of this
Court in Chhattisgarh State Electricity Board v. Central Electricity Regulatory
Commission and Ors. (2010) 5 SCC 23 it was contended on behalf of the
respondent that the date on which the order was pronounced would also be the
date on which the same is deemed to have been communicated.
11.
Section
125 of the Electricity Act, 2003 makes it abundantly clear that the period of
limitation commences from the date of communication of the decision or order
and not from the date of its pronouncement. As a matter of fact, Rules 94 and
98 of the Rules framed under the Act make a clear distinction between
intimation regarding pronouncement of the order on the one hand and the
communication of the order so pronounced to the parties on the other.
While Rule 94 appears
to us to provide for notice of pronouncement of an order, it makes no mention
about the ‘communication’ of such an order as is referred to in Section 125 of
the Act. Transmission of the order by the Court Master to the Deputy Registrar
of the Tribunal and its onward communication to the parties is dealt with by Rule
98 of thesaid Rules which communication alone can be construed as a communication
for purposes of Section 125 of the Electricity Act, 2003.
The decision oft his
Court in the Chattisgarh State Electricity Board’s case (supra) may in that
view require reconsideration if the same were to be understood to belaying down
that the date of pronouncement is also the date of communication of the order. We
would have, in the ordinary course, made a reference to a larger Bench for that
purpose but having regard to the fact that we have dismissed the appeals on
merits, we consider it unnecessary to do so in the present case.
12.
So
also the question whether an order passed by the Tribunal in appeal merges with
an order by which the Tribunal has dismissed an application for review of the
said order was argued before us at some length. Learned counsel for the
appellants contended that since a review petition had been filed by two of the appellants
namely, J.K. Industries Ltd. (Now known as J.K. Tyres and Industries Ltd.) and J.K.
Laxmi Cement Ltd. in this case, the orders made by the Tribunal dismissing the appeals
merged with the orders passed by it in the said review applications so thatit
is only the order dismissing the review application that was appealable before
this Court. If that were so the period of limitation could be reckoned only
from the date of the order passed in the review applications.
13.
Different
situations may arise in relation to review petitions filed before a Court or
Tribunal. One of the situations could be where the review application is
allowed, the decree or order passed by the Court or Tribunal is vacated and the
appeal/proceedings in which the same is made are re-heard and a fresh decree or
order passed in the same. It is manifest that in such a situation the
subsequent decree alone is appealable not because it is an order in review but
because it is a decree that is passed in a proceeding after the earlier decree
passed in the very same proceedings has been vacated by the Court hearing the
review petition.
The second situation that
one can conceive of is where a Court or Tribunal makes an order in a review petition
by which the review petition is allowed and the decree/order under review
reversed or modified. Such an order shall then be a composite order whereby the
Court not only vacates the earlier decree or order but simultaneous with such vacation
of the earlier decree or order, passes another decree or order or modifies the one
made earlier. The decree so vacated reversed or modified is then the decree that
is effective for purposes of a further appeal, if any, maintainable under law.
14.
The
third situation with which we are concerned in the instant case is where the revision
petition is filed before the Tribunal but the Tribunal refuses to interfere
with the decree or order earlier made. It simply dismisses the review petition.
The decree in such a case suffers neither any reversal nor an alteration or
modification. It is an order by which the review petition is dismissed thereby affirming
the decree or order.
In such a contingency
there is no question of any merger and anyone aggrieved by the decree or order
of the Tribunal or Court shall have to challenge within the time stipulated by
law, the original decree and not the order dismissing the review petition. Time
taken by a party in diligently pursing the remedy by way of review may in
appropriate cases be excluded from consideration while condoning the delay in
the filing of the appeal, but such exclusion or condonation would not imply
that there is a merger of the original decree and the order dismissing the
review petition.
15.
The
decisions of this Court in Manohar S/o Shankar Nale and Ors. v. Jaipalsing S/o
Shivalalsing Rajput (2008) 1 SCC 520 in our view, correctly settle the legal
position. The view taken in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774
and Kunhayammed and Ors. v. State of Kerala & Anr.(2000) 6 SCC 359, wherein
the former decision has been noted, shall also have to be understood in that
light only.16. In the result, we dismiss these appeals as no substantial
question of law arises for our consideration. The respondent shall also be
entitled to cost of Rs.20,000/- in each case to be deposited in the SCBA Lawyers’
Welfare Fund within six weeks from today.
……………………..……………..…J.
(T.S. THAKUR)
……………………………….………J.
(GYAN SUDHA MISRA)
New
Delhi
May
1, 2012
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